Judge denies EFF request to order NSA to preserve old data as evidence

OAKLAND, Calif. (KGO) -- Just a day after the 1-year anniversary of Edward Snowden's first public disclosures, an emergency hearing was held in an Oakland courtroom about those very same spying allegations.

The U.S. Justice Department was not in court Friday, but participated by phone in a case that's dragged on for so long that Snowden didn't even appear before the case began. In fact, this case is so old now, some of the evidence is in danger of automatically being deleted from federal servers unless a judge stops it.

Long before there was Snowden, there was Mark Klein. The phone company worker who found out the equipment he was installing was for government spying.

"I didn't sign up to work for the NSA and the way I thought of it, I was wiring up the big brother machine," Klein said.

When Klein blew the whistle, the Electronic Frontier Foundation used his documents to sue the government, claiming they were spying on Americans and violating the constitution. Seven years later, that case is still in court and there is no verdict in sight.

"We know that the government is doing massive domestic spying, spying that affects millions of Americans and we ought to be able to decide whether that's legal or not," Electronic Frontier Foundation Attorney Cindy Cohn said.

But instead, Cohn found herself in an emergency hearing, asking a federal judge to keep the government from deleting evidence.

Klein revealed a secret room in AT&T's switching center, where documents showed the NSA was copying Internet traffic.

The EFF is suing on behalf of novelist Carolyn Jewel, who believes her communications were among the millions collected.

But now, those communications could be automatically erased and the feds say stopping their systematic deletion could mess up their computers and harm national security.

"There are certainly national security implications here. I don't mean to belittle them, but I think that the government tends to overplay that card sometimes and the American people are getting a little tired of it," Cohn said.

But the judge sided with the federal government and denied the request.

"The courts all along have been cowardly I would say, or you could at best you could say conservative and wary of getting involved," Klein said.

Sitting in the back of the courtroom, Klein had to bite his tongue as the U.S. Justice Department refused to acknowledge the data even existed.

"I was tempted to say look at the NSA documents, look at the AT&T documents, it's all been revealed already and everybody knows about it. So why are they pretending, " Klein said.

For now, the NSA can keep systematically deleting to its heart's contempt. It was just one year ago tomorrow that we first heard about a program called PRISM. This NSA document shows that program not only records your phone records, but also your chat messages, your emails, even the recording of a voicemail message you may have left for someone.